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During the night of July 24 and the early morning hours of July 25, 2002, Garibay attended a party at a mobile home owned by Edward Forey. All the attendees, except for Forey’s girlfriend, were members of the Hard Times 13 gang, a Hispanic gang known to sport “13” tattoos and to wear blue gang colors and clothing displaying the number “13.”
Gang members resided at the trailer and «HT 13» was carved into a tree on the lot where the trailer was located. During the party, Garibay and two other gang members, Edward Nava and Miranda Sanders, decided to go on a “beer run,” which the gang members understood to mean stealing beer from a store. Before leaving, Garibay asked Forey for a gun and a black jacket. Forey kept a Ruger Red Hawk .44 Magnum revolver at his trailer for use by the gang’s members.
Armed for the beer run, Garibay, Nava and Sanders went to a Douglasville convenience store adjacent to the mobile home park. They drove there in a stolen Toyota Celica and parked behind the store. Sanders waited in the car while Garibay and Nava went inside. Once inside, Garibay grabbed beer from the cooler. He then pointed the revolver at the clerk and demanded money. Nava went behind the counter and collected $111.28 from the store’s two registers. When the victim was opening the second register, Nava struck him from behind. Nava told Garibay to shoot the victim, but Garibay did not. After Garibay and Nava fled with the beer and money, the victim called 911.
In the meantime, police officers responding to the 911 calls used dogs to track the robbers’ scent from the store to the mobile home park. As Garibay and Aguirre tried to leave the trailer park, the police tried to stop them at the exit. Instead of stopping, however, they fled, leading the police on a high speed chase down Interstate 20. The police captured Garibay and Aguirre after forcing their car off the road. The police recovered $50 from Garibay’s pockets when they searched him. They also discovered that Garibay and Aguirre had the number 13 tattooed on their bodies.
When Garibay and Nava returned to the trailer, they bragged about the robbery and shared the beer with the other gang members. They also divided the money between themselves and Forey and returned the gun to Forey.
Here, gang membership was key to explaining Garibay’s motive for participating in the crimes. The jury was authorized to find that Garibay committed the armed robbery while making a “beer run,” which the gang understood to mean stealing beer for the gang. Garibay did, in fact, share the beer with gang members, at a gang party, at a gang home marked with the number “13.”
Further, Garibay carried out the robbery with a fellow gang member, using a “gang gun” and both bore the marks of gang affiliation, a “13” tattoo and a “13” jersey. Based on this evidence, the jury could infer the armed robbery was committed in furtherance of the gang.
Additionally, Garibay argues the State should have indicted him under OCGA § 16-15-4, participation in criminal street gang activity, before the admission of evidence of gang affiliation would be relevant. However, “there is no requirement that the State charge a defendant with violating the prohibition of participation in criminal street gang activity in OCGA § 16-15-4 in order to admit otherwise relevant evidence of gang activity.”
Garibay also argues the court abused its discretion by admitting the testimony of the Cobb County Anti-Gang officer who testified about the Hard Times 13 gang, its use of the number 13, and the colors and tattoos associated with the gang. This Court has held that evidence explaining gang culture can be “material to informing the jury of all circumstances surrounding the crime charged, including . . . motivation, and we cannot say the trial court abused its discretion in admitting this evidence”. Given that the gang evidence was relevant and properly admitted under these theories, the court properly admitted this testimony. For all these reasons, the trial court did not error in admitting evidence of Garibay’s gang affiliation.
Garibay v. State, 620 S.E.2d 424 (2005). 275 Ga. App. 170. No. A05A1347. Court of Appeals of Georgia. August 17, 2005.
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